For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).
I
admit that I was surprised when I learned that David Pozen was hard at work on
a book project about the war on drugs. Pozen is a brilliant scholar of constitutional
law and constitutional theory; he’s written more field-defining pieces in his
time as a law professor than most of us could hope for in a lifetime. Why, I
wondered, would one of the leading constitutional scholars of his generation devote
this much time and work to a topic that, while clearly enormously important,
sounds more in policy than constitutional law?
My
reaction, of course, perfectly reproduced the failures of constitutional
imagination that Pozen’s extraordinary The Constitution of the War on Drugs reveals.
The story of the drug war’s policy failures is well known. What hasn’t
been previously understood, and what Pozen’s book powerfully shows, is how
implicated constitutional law is in all of this. Constitutional law has, at
best, failed to meaningfully constrain—and, at worst, has affirmatively
legitimated—the war on drugs and its monstrous human toll.
Reformers
have been fighting the drug war and its catastrophic consequences across
various fora and in various registers for nearly as long as it’s been around.
But even though reformers ground their arguments in values like individual
liberty, racial equality, fairness, and rationality—values with clear
constitutional valence—those arguments have not, in the main, been framed in
constitutional terms. In a legal and political culture fixated on the Constitution,
this absence is striking.
It’s
not that no one has tried to use the tools of constitutional law to
challenge various aspects of the war on drugs—at least in courts, Pozen’s
primary focus.
Much of the book is devoted to cataloguing this mostly lost constitutional history. Over the decades, lawyers have presented courts with constitutionally-grounded arguments against various aspects of the drug war. The first group of challenges Pozen catalogues involved
claims that various punitive drug laws violated constitutional guarantees of
liberty, privacy, and autonomy, recognized in cases like Griswold v.
Connecticut and Eisenstadt v. Baird, on contraception, Stanley v.
Georgia, on the right to possess “obscene” material in the home, and Roe
v. Wade, on the right to abortion (as well as earlier cases invalidating
restrictions on alcohol). Lawyers also made arguments sounding in racial
equality; federalism; the requirement of rational regulation; the prohibition
on cruel and unusual punishment; freedom of speech; and freedom of religion.
Each of these arguments had genuine
grounding in constitutional principles, and each had some degree of support—sometimes
significant support—in existing case law. Not surprisingly, then, some of these
constitutional challenges were successful.
In the 1960s and 70s, a handful of courts accepted
advocates’ arguments that classifying marijuana as a narcotic, often alongside
far more dangerous drugs like heroin, was constitutionally unreasonable and
could not withstand even minimum rationality review. In 1962, the Supreme Court
in Robinson v. California held that the state could not criminalize drug
addiction. Two years later, the California Supreme Court sided with peyote
users who asserted that a state law prohibiting the use of peyote interfered
with their right to freely exercise their religion. In 1972, the Michigan
Supreme Court found that a mandatory minimum sentence of twenty years for
selling marijuana constituted cruel and unusual punishment under both the state
and federal constitutions. In 1975, the Alaska Supreme Court decided that the
state’s marijuana ban violated the state constitution’s right to privacy,
following several other state courts that had reached the same conclusion under
their own constitutions. And in the early 1990s, both the Minnesota Supreme
Court and a federal district court in that state found that the law’s much
harsher penalties for crack than powder cocaine discriminated on the basis of
race, given the wildly disproportionate rates of enforcement (in Minnesota in
1988, 96.6 percent of individuals charged with crack possession were Black).
So some
constitutional arguments did get traction. But the decisions in those cases were
for the most part short-lived or limited in impact. Lower court opinions were
reversed on appeal; earlier, more rights-protective or drug-law-skeptical
opinions were overruled; the reasoning and effects of opinions that did stand—like
Robinson v. California—remained limited in their impact. And advocates
and reformers, rather than continuing to press constitutional arguments as part
of a long-term effort to reshape constitutional understandings, seem to have largely
abandoned the Constitution. This was not only true in courts. In a short
discussion late in Pozen’s book, on a topic I wished he’d spent more time on,
Pozen writes that “Combing through
the past six decades of the Congressional Record and the Federal Register, I
have been unable to find any examples outside the religious liberty context of
legislative or executive officials attempting to rebut courts’ constitutional
rulings on drug prohibition, or even engaging with their substance in a serious
manner.” (P. 147) This neglect
seems to have extended not only to judicial doctrine, but also to any
consideration of the Constitution as relevant to the issue of drug prohibition.
In one particularly revealing passage, Pozen asks the head of the marijuana advocacy
organization NORML “why the
organization didn’t emphasize its constitutional objections to marijuana bans
in public hearings and other venues.” The director explained that “any such
strategy was seen as a ‘nonstarter,’” because “Opponents would shoot it down by
demanding, ‘Cite a case!’” (P. 148)
This
overdeveloped sense of judicial supremacy—even judicial exclusivity—seems in
part responsible for constitutional law’s failures in the context of the war on
drugs. Another portion of the blame lies with the limits constitutional law
places on the forms or modalities of constitutional argument it deems
legitimate. The dominant modalities, importantly, do not include the
types of arguments that, as Pozen shows, might have best articulated the flaws
in our regime of punitive prohibitionism—policy arguments, particularly
cost-benefit analysis; and “fundamentalist” arguments that draw on philosophical
premises, like John Stuart Mill’s harm principle. Constitutional law’s
rejection of those forms of argument—which Pozen and Adam Samaha have elsewhere
described as “anti-modalities”—meant that the most promising constitutional
arguments against the drug war were largely out of bounds. Beyond political-branch
neglect and the limits of constitutional grammar in courts, Pozen suggests a
social-movement-oriented explanation: the absence of a broad, stable, and
multiracial coalition against the drug war may distinguish the trajectory of
drug-rights claims from claims on the Constitution that were far more
successful during the same period, including the efforts to eliminate state
bans on same-sex sexual intimacy and eventually same-sex marriage.
There
isn’t much in the book about reproductive rights and justice. But for perhaps
obvious reasons given the present moment, as I read the book, my mind often
went to the failures of constitutional imagination that have attended efforts
to use the Constitution to protect reproductive freedom. Those failures are in
many ways different from the failures Pozen chronicles. Constitutional
arguments against punitive drug policies never gained widespread acceptance; by
contrast, the Supreme Court’s acceptance of the privacy rationale for abortion in
Roe v. Wade stunted the development of other strains of constitutional
argument for reproductive freedom and autonomy while Roe and later Planned
Parenthood v. Casey were the law of the land. But there are nevertheless
lessons in the drug policy story for reproductive freedom advocates.
One
of those lessons is the importance of long-term thinking in the context of efforts
to change constitutional understandings. The campaign to unsettle Roe drew
on decades of work in various fora: a push for a constitutional amendment;
the introduction and sometimes passage of legislation in state houses even
where inconsistent with settled judicial understandings; executive-branch and
scholarly incubation of an interpretive strategy designed at least in part to lead to Roe’s
demise; and a focus on judicial appointments, to name just a few.
A
related lesson is about defeat. The push to topple Roe was a 50-year
project with many losses for abortion opponents along the way; if advocates had
abandoned claims on the Constitution in the wake of such defeats, the state of
our law would look radically different today. Similarly, any effort to overturn
Dobbs and restore an understanding that the Constitution protects the
right to terminate a pregnancy will necessarily be a long-term project, with many failures and defeats along
the way.
The
episodes Pozen recounts also hold lessons about the importance of innovation
and imagination in making constitutional arguments. In the context of abortion,
such claims should naturally include familiar arguments focused on equality,
grounded in both the fourteenth and nineteenth amendments and analogous state
constitutional protections. But they should extend to arguments asserting
religious-liberty-based objections to abortion regulations; claims under state
constitutional values like health and family; claims grounded in speech and
expressive association; arguments from privileges and immunities, the right to
travel, and prohibitions on cruel and unusual punishment.
Finally,
these claims and arguments should not be addressed exclusively to courts; rather,
there are multiple constitutional audiences and constitutional constituencies,
including elected officials in legislatures and executive branches, and
reproductive freedom advocates should direct those arguments at all of them.
None
of this is to say that advocates should focus exclusively or even primarily on
constitutional law in targeting what Dobbs has wrought. And Pozen makes no
such suggestion in the context of efforts to resist the drug war. But I think
Pozen’s closing thoughts on drug policy apply with full force to the abortion
context: “It would be a mistake….to give up on the Constitution altogether.”
(P. 174) In the context of fighting both punitive drug policy and punitive
abortion policy, the human stakes demand the use of every possible tool. The
Constitution is just one of them.
Kate
Shaw is a Professor of Law at the University of Pennsylvania Carey Law School,
and a cohost of the Strict Scrutiny podcast. You can reach her at
kateshaw@law.upenn.edu